As of January 1, 2018, New York State now has a paid family leave law fully in place. The new law affects virtually all non-governmental workplaces in the state. (And governmental entities that opt in.) I hope your organization is already up to speed on the basics of New York Paid Family Leave. This post goes beyond those for employers who are also subject to the federal Family and Medical Leave Act (FMLA). It addresses the differences and potential conflict between New York Paid Family Leave vs. FMLA.
Employer Coverage
The FMLA applies to all governmental employers in the United States, and all private-sector employers with 50 or more employees.
By contrast, the New York Paid Family Leave Benefits Law applies to (nearly) all non-governmental employers of New York employees. The law applies even if a company has only one employee in New York. Public-sector (governmental) employers can opt in to the Paid Family Leave Program, but are not automatically covered.
Employee Eligibility
To be potentially eligible to take FMLA leave at a given time, an employee must:
- Have worked for the employer for at least one year;
- Have worked at least 1,250 hours in the past 12-months;
- Work at a location where the employer has at least 50 employees within 75 miles.
Under the New York Paid Family Leave Program, the eligibility of employees of covered employers depends on their regular work schedules:
- Employees regularly scheduled to work 20+ hours per week become eligible once they have worked for at least 26 consecutive weeks.
- Employees regularly scheduled to work less than 20 hours per week become eligible once they have worked for 175 days.
For more information, see Which Employees Are Eligible for New York Paid Family Leave?
Qualifying Circumstances
One of the most fundamental differences between New York Paid Family Leave vs. FMLA is that employees can’t use the paid family leave for their own serious health condition. The New York Paid Family Leave Benefits Law doesn’t cover this form of leave because mandatory short-term disability insurance (or worker’s compensation insurance) already provides benefits when employees can’t work due to injury/illness. However, the benefits are not the same, creating some gaps and potential confusion.
Both PFL and FMLA are available for:
- Bonding with a new child;
- Caring for a family member with a serious health condition; and
- Qualifying exigencies related to a family member’s active military duty.
However, there are still differences between Paid Family Leave vs. FMLA within these leave categories.
Many of the differences in scope of leave eligibility result from New York’s broader definition of covered family members.
Under the FMLA, an employee can only take leave to care for a child’s serious health condition if the child is still under the age of 18 or otherwise “incapable of self-care.” FMLA leave is also available to care for a spouse or parent.
Employees can take New York Paid Family Leave to care for any of the following:
- Child (of any age)
- Parent, Step-Parent, and Parent-in-law
- Spouse or Domestic Partner
- Grandparent (including step/-in-law)
- Grandchild
Find out more: When Can an Employee Take Paid Family Leave in New York?
Compensation
The FMLA only provides unpaid leave. As its name suggests, New York’s Paid Family Leave Program compensates employees on covered leave.
Initially, employees taking paid family leave in New York will receive 50% of their average weekly wage, capped at $652.96.
For more details, read What are the New York Paid Family Leave Benefits?
Other Distinctions Between Paid Family Leave vs. FMLA
I can’t address every difference between New York Paid Family Leave and the FMLA in this post. But here are some that New York employers with 50+ employees should familiarize themselves with.
Paid Time Off (PTO)
Under the FMLA, employers can require employees to use PTO (including vacation time, sick time, etc.) during FMLA leave.
The New York Paid Family Leave Program only gives employers the option to allow employees to use PTO during paid family leave. If the employer gives the option, it’s ultimately the employee’s choice.
Leave Increments
Employees can only take New York Paid Family Leave in daily increments.
Under the FMLA, employers must allow increments at least as small as one hour. If the employer allows shorter increments for other forms of leave, then the same shorter increments must also be available for FMLA leave.
Leave Administration
There are also critical procedural differences between New York Paid Family Leave vs. FMLA.
Most significantly, employers solely determine whether an employee qualifies to take FMLA leave. However, because New York’s Paid Family Leave compensation is an insurance benefit, the insurance carrier decides whether the employee qualifies.
This means that an employer may determine that an employee qualifies for FMLA leave, only to have the insurance carrier separately decide that they will not receive paid family leave benefits.
Under the FMLA, an unsatisfied employee’s recourse would be to sue their employer. But New York’s Paid Family Leave Program establishes an arbitration process, between the employee and the insurance carrier.
How To Balance Paid Family Leave vs. FMLA
Frankly, this will be no small feat for many employers. Some companies with many employees already have sophisticated systems in place to process and oversee FMLA leave. Most smaller companies closer to the 50-employee threshold just do their best on a case-by-case basis.
It’s too early to tell exactly how much of a hassle New York Paid Family Leave will prove to be, but some employers will face difficult situations. Beyond FMLA and paid family leave, various other legal restrictions/requirements may come into play. Accordingly, it is important for employers to seek legal advice from an attorney experienced in New York employment law to work through specific scenarios.
